Tuvell v. IBM

Tuvell v. IBM ⸻ Story │ RecordDiscussion

[A] long line of cases shows that it is not merely of some importance, but is of fundamental importance, that justice should not only “be” done, but should manifestly and undoubtedly “be seen” to be done.

— Lord Hewart CJ, R v. Sussex Justices, Ex Parte McCarthy (1 KB 256 [1923], All ER Rep 233 [1924], emphasis added); attributed as the genesis of the principle that the mere appearance (not necessarily reality) of bias is sufficient to overturn a judicial decision (and hence, often cited as a prime requisite of judicial ethics, and as a basis for judicial recusal/disqualification) {・“R” here is formulaic in English law, standing for “Rex/Regina,” King/Queen/State.}

Walter E. Tuvell
Walter E. Tuvell

Underlying Case-In-Chief

NOTE — Some readers (esp. those interested only in judicial misconduct) may wish to skip this introductory section upon a first reading — because, knowledge of the underlying factual (substantive merits) background is completely unnecessary for understanding the judicial misconduct (procedural rules) aspects of the case (which is where the judicial misconduct happened)!

▶ The following summary of the Tuvell v. IBM case-in-chief factual background is excerpted from the (i) Petition for Writ of Certiorari (PetWritCert) ℘7–13 (page-footnotes appearing there are converted into paragraph-footnotes here, numbered/notated differently, as appropriate for web publication). A detailed statement of the facts of the case can be found in (ii) Plaintiff’s Complaint = Appeal Joint Appendix (AplJApx) ʋI ℘10–40 , and in (iii) Plaintiff’s Statement of Facts (PSOF) = PetWritCert Required Appendix (ReqApx) ℘48–84 (also at PetWritCert Optional Appendix (OptApx) ℘172–199 ); augmented by the (iv) PSOF-Exclusion Table (1-page abridged and 5-page unabridged versions). The evidence supporting the PSOF can be found in the (v) Appeal Joint Appendix (AplJApx) (in four parts: ʋI, ʋIIa, ʋIIb, ʋIII). Of abiding interest (for both contemporaniety and emotional impact) are the (vi) original internal complaint documents (parts of which are repeated elsewhere in the record, too) that Tuvell submitted to IBM prior to initiation of formal litigation, IbmComplaints.zip (these are voluminous and complete, as Tuvell created them to fully apprise IBM of events, and as a form of Narrative/Writing Exposure Therapy to cope/manage/heal his PTSD). Finally, a (vii) time-orienting calendar has been supplied. ◀

Walter Tuvell is a white male U.S. citizen, a mathematician (B.S. MIT, PhD U. of Chicago), over 40 years of age (the ADEA limit), spending his working life as a computer scientist (technical software professional). He was working at Netezza Corp. (Marlboro, Mass.) when it was acquired by IBM on January 1 2011.α Tuvell’s job title was Performance Architect, under the organizational supervision of Dan Feldman, but reporting on a day-to-day operating basis (“dotted-line,” “matrix model”) to another supervisor, Fritz Knabe, at a satellite office (in Cambridge, Mass.), working on a next-generation database-warehouse project, code-named “Wahoo.”β

α・ ⁠All dates in this section refer to 2011, unless expressly stated otherwise.

β・ ⁠Projects at pre-IBM Netezza were customarily code-named after species of fish.

Tuvell had no history of friction with anyone at Netezza/IBM, when “out-of-the-blue” on May 18, Knabe “informed” Feldman privately that Tuvell had failed to deliver certain Excel graphics that Knabe had instructed/ordered Tuvell to produce. That was a whole-cloth lie: Knabe never broached anything like any such task to Tuvell, at any time, ever. It would have been “impossible” for Knabe to do so — since Knabe knew well that Tuvell didn’t use Microsoft software of any kind (such as Windows and Excel). Tuvell instead used exclusively the Linux “operating system,” and its “open-source” software applications; this was quite well-known (and acknowledged/accepted/permitted/encouraged) by everyone Tuvell worked with. Feldman confronted Tuvell with Knabe’s accusation later that same day, “siding” with Knabe — even though Feldman also knew well that Tuvell used only Linux-based tools.γ

γ・ ⁠For “(pretext-based) proof” of Knabe/Feldman’s dishonesty concerning the Excel graphics episode, see PetWritCert ℘30ƒ44 — noting, however, that such proof is not necessary at summary judgment stage. Instead, the judge must reflexively/automatically (with no more than de minimus plausibility of proof) credit/believe Tuvell’s side of story (“nonmovant-trumps-movant” and “light-burden” tenets of the Summary Judgment Tenets of Review (SJTOR), see PetWritCert ℘17–20, also Introduction).

Instantly, Tuvell suffered severe shock/dismay/devastation, and worse. For, Tuvell was/is a long-term victim of whistleblowing/bullying-instigated PTSD, stemming from previous defamatory/abusive workplace incidents he’d experienced more than a decade previously while at another employer, but which was since in remission (“passive”/“dormant” phase). Knabe/Feldman’s accusation immediately caused/“triggered” Tuvell to reexperience an acute/“active” PTSD “flashback”/relapse. From that moment, Tuvell struggled mightily under the resurgence of his PTSD. Tuvell hid his anguish from Feldman as best he could that day, but he did firmly deny Knabe’s charge. The next day, Tuvell proposed a three-way meeting, so that the three men could “clear the air” (determine what had really happened — potentially/hopefully just a miscommunication), and avoid its happening again.

Tuvell’s (∼half-dozen) requests for three-way meeting went unheeded,δ prompting Tuvell to explicitly reveal his PTSD affliction to Feldman on May 26, citing it as the reason he sought the three-way meeting “reasonable accommodation.”ε At that exact point, IBM was aware of Tuvell’s ADA-protected disability. Feldman nonetheless continued to deny all requests for three-way-meeting (or to suggest any other means of accommodation), causing continued decline in Tuvell’s psychological state.

δ・ ⁠The desired meeting never did materialize.

ε・ ⁠Tuvell did not use the language “ADA” or “reasonable accommodation” until later, noting that the ADA does not require the use of such “magic words” at any time. EEOC Guidance: Reasonable Accommodation (excerpted extensively at Petition Addendum (PetAdd) ℘6–9 = ReqApx ℘106–109).

On June 8, Knabe attacked Tuvell with another whole-cloth lie — this time, about Tuvell’s not timely completing a certain task, even though Knabe knew (thanks to daily “stand-up” meetings) that Tuvell was on-schedule (there was no “untimeliness”) with all his deliverablesζ — by falsely yelling loudly at Tuvell in the presence of other Wahoo team-members in Cambridge.

ζ・ ⁠(i) Tuvell had completed his task due that day. (ii) The task Knabe yelled about wasn’t due for another ten days (and Tuvell did deliver it two days later, more than a week early).

Knabe (falsely) “informed” Feldman, and on June 10 Feldman peremptorily demotedη Tuvell to a much less desirable position — “switching” him with another employee, less-qualified and lower-ranked — giving for “reason” that Tuvell and Knabe could not work together (but not holding Knabe accountable for his then-known-false actions). Tuvell protested, and immediately informed Feldman that he intended to escalate the matter to HR (Human Resources), which he did do later that same day.

η・ ⁠IBM prefers euphemistic language such as “transfer/​reassignment;” but we rather agree with J. Alito’s candid characterization: “demotion” (PetWritCert ℘35).

And that’s when things really “went south.”θ

θ・ ⁠Regarding the “shortcomings” of IBM HR, consult: (i) original IBM internal complaints; (ii) Expert Report = AplJApx Exh.115–116 ; (iii) Nov 17 2011, phone call (audio, transcript) with HR head Russell Mandel.

When Tuvell met with the HR representative, Kelliann McCabe, on June 13, she asked him why he thought Knabe and Feldman would act the way they did. Tuvell said he didn’t know why, but based on the fact that Feldman/Knabe displayed no interest whatever in resolving the situation (“stonewalling” even the simple/obvious proposal for three-way meeting), Tuvell surmised that “something illegal must be at the root of things,”ι and that he suspected age discriminationκ might be the motivating factor. That discrimination complaint was protected by law, of course.λ

ι・ ⁠This is a legitimate/​protected pretext-based inference; see PetWritCert ℘33ƒ51.

κ・ ⁠During the course of events as they emerged (as related in this section, and later), plaintiff was unable to uncover solid/​direct evidence of age-based discrimination (which is why that charge was later dropped). On the other hand, very obvious retaliation (for complaining of discrimination in the first place) did arise immediately, soon followed by a plentiful abundance of direct PTSD-disability-based discrimination and retaliation, which is what now forms the heart of the case. {†・ A charge of retaliation remains viable even in the absence of underlying substantive discrimination (see PetWritCert ℘11ƒ17, and PetAdd ℘6 = ReqApx ℘106) — provided the retaliated-upon discrimination charge was made on reasonable grounds (as it was, because Tuvell was the oldest technical employee at Netezza, to his knowledge), and in good faith (as it was, namely pretext-based inference, see PetWritCert ℘8ƒ10, ℘10ƒ15, ℘30ƒ44, ℘33ƒ51).}

λ・ EEOC Compliance Manual §8-II(B)(2) ℘8-4–8-5 (excerpted extensively at PetAdd ℘5–6 = ReqApx ℘105–106), emphasis added: “Complaining to anyone about alleged [it does not have to be proven, to judge or jury] discrimination against oneself or others … constitute[s] [protected] ‘opposition’.

It would take us too far afield at this point (the factual details being unnecessary for this Petition [and this Judicial Misconduct website]) to even list here the dozens of “bad things” that happened to Tuvell from that point forward.μ Suffice it to say that at every juncture, Tuvell took the right/appropriate/approved steps to “clear his name,” according to IBM’s published policies/programs/procedures/practices. This especially involved invoking IBM’s formal internal dispute resolution (IDR) mechanism, called Open Door Concerns & Appeals (C&A) [Corporate, i.e., addressed directly to the CEO and Executive Staff] — as encouraged/exhorted/commanded to do by the IBM Business Conduct Guidelines (BCG) — for which he produced valuable/detailed/voluminous reports to aid IBM’s investigation. Nonetheless, he was treated to an unrelenting stream of discriminatory/retaliatory acts, from every IBM representative/agent who “touched” his case. Whatever was the original motivating animus for the Excel graphics and yelling episodes, the resulting upshot was that after Tuvell revealed his PTSD and complained of discrimination/retaliation, the environment devolved into a steady torrent of abusive harassment.

μ・ ⁠For a rough/​summary grasp of events (with only tagline names, sans explanation) see the PSOF-Exclusion Table (Abridged PetWritCert ℘29 ; Unabridged ReqApx ℘86–90 ).

IBM continued to refuse ADA “interactive dialogue/process” and “reasonable accommodation”. On August 15, unable to endure more health-wise, Tuvell took short-term disability (STD) leave. The one-and-only condition Tuvell required for resuming his job was cessation of PTSD-exacerbating psychological abuse, i.e., removal from Feldman’s health-harming hostile management. Absent rehabilitation/removal/transfer of Feldman, Tuvell twice applied for transfer to a known open/funded position for which he qualified; IBM officially recognizes/supports that solution, and the ADA even requires it.ν

ν・ EEOC Guidance: Reasonable Accommodation, at Reassignment (excerpted extensively at PetAdd ℘8 = ReqApx ℘108), emphasis added: “Reassignment[/transfer] is the [only] reasonable accommodation of last resort and is required ...”

But IBM refused transfer, “stonewalling” to the bitter end. Unable to return to IBM because of IBM’s refusal to accommodate his PTSD, Tuvell was forced by economic necessity to find stop-gap employment at another software company (Imprivata, beginning on March 12 2012), thinking it would be a “temporary gig” until IBM finally “wised up” and “did the right thing,” returning him to his desired job (or alternatively approving the transfer he sought) at IBM. They never did; Tuvell never returned from his STD leave. On May 17 2012, IBM terminated Tuvell on an absurd and “trumped-up” (and illegal)ξ charge.

ξ・ ⁠Discussed at PetAdd ℘19–20 = ReqApx ℘119–120.

(And that’s the Truth.)

District Court Proceedings

As recorded in the District Court Docket = AplJApx ℘1–9 (also at OptApx ℘566–574), Tuvell v. IBM (D.Mass. case №1:13-cv-11292-DJC) was filed in the D.Mass. District Court (First Federal Circuit) on May 30 2013 (the Complaint has already been mentioned supra). The case had at that point been through the “usual” preliminary steps (for employment discrimination/harassment/retaliation cases): (i) submitted/charged to the MCAD (Massachusetts Commission Against Discrimination, the state’s FEPA, Fair Employment Practices Agency, affiliated wth the Federal EEOC, Equal Employment Opportunity Commission; from which it was (ii) preemptively aborted by Tuvell (before any investigation/mediation/decision); so he could (iii) request the necessary Notice of Right to Sue Letter; in order to instead (iv) promptly file suit at Mass. State Court; from which it was then (v) removed by IBM (28 USC §1441,1446) to Federal District Court.

First Circuit Moakley Courthouse, Boston
Moakley Federal Courthouse (First Cir. & D.Mass., Boston)

The case was assigned to (Article III) Judge Denise Casper (having been preliminarily assigned to a Magistrate Judge, objected to by IBM; FRCP 72). http://www.mad.uscourts.gov/boston/casper.htm; https://en.wikipedia.org/wiki/Denise_J._Casper.

Judge Denise J. Casper
Judge Denise J. Casper

After a relatively uneventful (for the purposes of judicial misconduct) process of motions/discovery/depositions/affidavits/etc. (see the aforementioned 4-part AplJApx (ʋI, ʋIIa, ʋIIb, ʋIII) for much of it), IBM filed a Motion for Summary Judgment on Dec 15 2014 (Dkt#73). Hence, pursuant to customary practice in D.Mass (FRCP LR 56.1),ο the parties properly filed the following seven key documentsπ — noting that only two of them, DSOF = OptApx ℘74–91 and PSOF = OptApx ℘172–199 (also at ReqApx ℘48–84 ), are actually required per FRCP LR 56.1. As listed at PetWritCert ℘20–21, the seven documents are:ρ

ο・ ⁠In fact, the various districts of the First Circuit (D.Mass, D.Me., D.N.H., D.R.I., D.P.R.) can/do employ different (syntactically and semantically) LR-versions of FRCP 56. So, the blanket language “First Circuit district courts” at PetWritCert ℘20 was to that extent inaccurate, though all excerpts and reasoning were accurate for D.Mass., which is the only district involved in Tuvell v. IBM. {†・ Trivial “typos” like this are of no consequence to legal proceedings: de minimis non curat lex (“the law does not concern itself with trifles”); FRCP 61.}

π・ ⁠There were also some other, non-“key,” filings, such as Defendant’s Affadivit in Support (Dkt#76) with Exhibits (Dkt#76-∗), of no consequence here.

ρ・ ⁠Legend: “✭” = required to be filed; “✔” = explicitly listed/cited/noted by the courts; “✓” = “otherwise noted” by the courts; “❎” = “X’d-out” = ignored by the courts;strikethrough” = “memoranda of law” (not forwarded to appeals court, effectively replaced/superseded by ApltBrief = OptApx ℘270–341 , ApleBrief = OptApx ℘342–412 .

Oral argument = AplApx ℘212–231 was held on Mar 12 2015. It was unilluminating, except for being remarkably brief/superficial/perfunctory (“as-if” the judge had already made up her mind, and was no longer interested in the case at this point).

The District Court’s Opinion/Decision (and Order) = OptApx ℘6–32 (Dkt#94) (also at ReqApx ℘4–38 ) was dated/delivered Jul 6 2015, filed on Jul 7, and its Judgment = OptApx ℘38 (Dkt#95) (also at ReqApx ℘44–45 ) dated/filed on Jul 8 — falsely granting IBM’s Motion for Summary Judgment and dismissing the case.

THIS IS PRECISELY WHERE THE JUDICIAL MISCONDUCT ORIGINATED (recurring/covered-up many times, as related infra): In arriving at her (false) decision/opinion on the Summary Judgment motion, the District Judge (falsely) refused to “hear” any part of plaintiff’s side of the case at all — by WHOLLY IGNORING/EXCLUDING plaintiff’s REQUIRED PSOF (Dkt#83), as marked “✭❎” supra, and paying attention ONLY to defendant’s DSOF (Dkt#74) — recalling that the court is ABSOLUTELY NON-DISCRETIONALLY REQUIRED to do the exact opposite: consider and credit PSOF (Dkt#83) over DSOF (Dkt#74) for the purposes of summary judgment (by rule: the “nonmovant-trumps-movant” tenet of the SJTOR). Indeed, Judge Casper herself explicitly/expressly admitted/vouchsafed such, by authoring/signing the following self-contradictory “SMOKING GUN” passage (i.e., single/discrete/standalone piece of irrefutable evidence sufficient to support charges of wrongdoing) in her Decision/Opinion ℘2 (annotated here):

Smoking Gun (from District Court’s Opinion)
SMOKING GUN BIG LIE Elephant-in-the-Room (from District Court Decision/Opinion ℘2)

This (mis)behavior (which may be languaged as treating the Plaintiff/Nonmovant as INVISIBLE) constitutes/proves obvious/blatant/egregious/outrageous criminal/impeachable Judicial Misconduct — Falsification of Facts, Obstruction of Justice, Fraud Upon the Court (by a Judge) [and, later, Cover-Up by this and other judges, see infra] — pure and simple. QED.

A “fraud on the court” occurs where it can be demonstrated, clearly and convincingly, that a party [or an officer of the court, especially a judge] has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the [judge/]trier or unfairly hampering the presentation of [a] party’s claim or defense.

Aoude v. Mobil Oil, 892 F.2d 1115 (First Cir., 1989); see also Aoude v. Mobil Oil, 862 F.2d 890 (First Cir., 1988)

Tuvell, a long-term victim of whistleblowing/bullying-instigated PTSD, was of course more-than-devastated by this insane/deviant decision/opinion. After weeks of identity-crisis-inducing internal conflict (with months/years more yet to come), Tuvell’s mind was able to reconcile the court’s crazy-making behavior in only one way: “The judge must have delegated/relegated the case to an inexperienced law clerk, who was massively unqualified, and this nonsensical result will certainly be corrected by wiser heads upon appeal.”

District Court Reconsideration

Motions for reconsideration by the District Court are available (however designated, noting that the exact word “reconsideration” itself does not appear in the FRCP; FRCP 52,59,60). But these are discretionary, rare, disfavored (viewed as an affront to the judge, inducing “fear of speaking truth to power” in attorneys), unlikely to succeed, disindicated in this case (the usual criteria for success didn’t apply), and discouraged by Tuvell’s counsel (who instead advised the usual path of “appeal as of right” (FRAP 4) to the First Circuit Court of Appeals.)

Notice of Appeal = AplJApx ℘210–211 (Dkt#98) was timely filed on Aug 5 2015.

Circuit Appellate Court Proceedings

The relevant documents filed for appellate proceedings for case Tuvell v. IBM (First Circuit case №15-1914) — apart from the district court record (esp. the seven key Summary Judgment documents), and the 4-part AplJApx (ʋI, ʋIIa, ʋIIb, ʋIII) — were:

Tuvell’s ApltBrief and RepApleBrief  were limited to a re-hash (with no more than trivial tweaks) of the arguments already made at district level (as was IBM’s ApleBrief ). Most notably, they contain no mention whatsoever of the aforementioned Smoking Gun (or any other procedural aspect of the case). Tuvell objected vigorously to his attorneys about this omission, but they forcefully guaranteed him that this was the only appropriate legal practice to pursue. For (they said), an appellate court’s standard of review for a summary judgment motion is de novo (also known as plenary), that is, the appellate court considers all party submissions/arguments, together with the “record below” (in the lower court), freshly, with a totally open mind, owing no deference whatever to the lower court’s “findings-of-fact” or “conclusions-of-law” (noting, though, that at summary judgment stage, no findings-of-fact are actually made by judges — they merely note the existence of disputed genuine issues of material fact; see Introduction). Therefore (so the attorneys said), it was not appropriate to “complain about the district court’s opinion” at initial appeal time, because the battle to be fought at that point was still against the opposing party (IBM), not the judge.

The appellate panel consisted of judges Juan Torruella (http://www.ca1.uscourts.gov/juan-r-torruella; https://en.wikipedia.org/wiki/Juan_R._Torruella), Sandra Lynch (http://www.ca1.uscourts.gov/sandra-l-lynch; https://en.wikipedia.org/wiki/Sandra_Lynch), and Rogeriee Thompson (http://www.ca1.uscourts.gov/o-rogeriee-thompson; https://en.wikipedia.org/wiki/Ojetta_Rogeriee_Thompson) — the first two having earlier served as chief circuit judge (so things now looked hopeful for Tuvell).

Judge Juan Toruella
Judge Juan R. Torruella
Judge Sandra Lynch
Judge Sandra L. Lynch
Judge Rogeriee Thompson
Judge O. Rogeriee Thompson

Oral hearing (audio, annotated transcript) was held on Apr 5 2016. It was a remarkably confused affair: the panel obviously hadn’t done their de novo homework, and didn’t have a grasp of the case at all (neither the fundamental case-in-chief substantive aspects, nor the plain-as-day Smoking Gun procedural blunder).

The Appellate Panel’s (“summary,” Per Curiam, unanimous, not-for-publication) Decision/Opinion = OptApx ℘0–4 (also at ReqApx ℘0–3 ), and Judgment = OptApx ℘36 (also at ReqApx ℘42–43 ), were dated/delivered May 13 2016 — falsely affirming the District Court’s Decision/Opinion.

The panel’s decision/opinion affirmatively stated that it independently (plenary, de novo) drew/adopted the same/exact conclusion that the district judge did (internal citations omitted):

Under the plenary standard of review for summary judgment, we perceive no genuine issue of material factσ and agree with the district court that IBM is entitled to judgment as a matter of law. Simply said, the district court got it right. It closely considered each of Tuvell’s arguments and, in clear terms and for persuasive reasons, rejected them.τ

Appellate Opinion ℘4 

σ・ ⁠This catchphrase (and its variations), “we perceive no genuine issue of material fact,” without explication, is a dead give-away: it’s the very formulaic incantation used by federal judges when they illicitly/illegally “deep-six” cases at summary judgment, especially employment discrimination cases — as admitted by a sitting federal judge (PetWritCert ℘15ƒ21).

τ・ This is shamelessly false/insane. The district judge self-admittedly did not “consider”/“hear” Tuvell’s asserted facts/disputes at all. Rather, she self-confessed, in the Smoking Gun, to practicing/committing PSOF-Exclusion. Further, at summary judgment time, it is not within any judge’s (neither district judge, nor appellate panel upon de novo review) purview to “consider and reject” (i.e., “assess/evaluate/‘weigh’ credibility to decide ‘who wins’”) disputes. Instead, the judges are required/permitted only to observe/notice the existence of disputed facts. But these judges refused to even “consider/hear” Tuvell’s asserted facts/disputes, much less whether they conflicted with IBM’s asserted facts/disputes. That is insane.

Since this is an absurd, transparent, bald-faced “big lie” — despite self-proclaimed in-depth de novo review, no less — the writing was now indelibly on the wall: this was now a full-blown cover-up of Judicial Misconduct, and these judges were truly bad apples, committed to flushing this case down the toilet, come hell or high water, in full-frontal defiance of professionalism, law, logic, morality, and humanity.

The gloves were now off. The war was now on.

Appellate Court Rehearing

In the run-up to rehearing, Tuvell and his attorneys came to an impasse. Tuvell’s attorneys still adamantly refused to mention procedural irregularities or the Smoking Gun at all. Tuvell now adamantly insisted upon it. No middle ground could be reached. So Tuvell and his attorneys parted ways. From this point on, Tuvell proceeded pro se (he was the sole actor involved in all subsequent activities and filings) (PetWritCert ℘viƒ6).

Petition for Rehearing (PetReh) = OptApx ℘446–470 (also corrected version), both panel and en banc, with Annotations/Endnotes (PetRehAnn) = OptApx ℘472–484 broken out separately because of word-count limitations (also corrected version), was filed on Jun 4 2016. In this document, Tuvell did indeed mention procedural irregularities and the Smoking Gun, for at rehearing time this was now acceptable, and even expected/required (as mentioned at PetReh ℘vƒ‡). But the Smoking Gun was mentioned in only in the mildest of circumspect terms (e.g., PetReh ℘v), to avoid offending the judges with over-the-top language.

Given the sordid history of the case to that point, it was not at all unexpected when the First Circuit Petition for Rehearing was summarily/blindly/brainlessly issued a single-sentence false denial (OptApx ℘34 ; also at ReqApx ℘40–41 ), on Jun 15 2016. Nor was it at all surprising that two additional judges (noting that the First Circuit is by far the smallest circuit, comprising a too-collegial/in-bred totality of only six full-time Article III judges) joined the panel of three in issuing the denial: Chief Judge Jeffery Howard (http://www.ca1.uscourts.gov/jeffrey-r-howard; https://en.wikipedia.org/wiki/Jeffrey_R._Howard), and Judge William Kayatta (http://www.ca1.uscourts.gov/william-j-kayatta-jr; https://en.wikipedia.org/wiki/William_J._Kayatta_Jr.).

Jeffery R. Howard
Chief Judge Jeffery R. Howard
Willia J. Kayatta
Judge William J. Kayatta

At that point in time, Tuvell was aware of only a single further avenue to pursue for redress: (i) the Supreme Court, via a Petition for Writ of Certiorari. Late during that work, he became aware of a second possible direction: (ii) Judicial Misconduct proceedings, via (ii′) Judicial Council, and (ii″) Judicial Conference. Later still, Tuvell finally became aware of a third plausible path: (iii) criminal proceedings, via DOJ/FBI/PIN. All these pursuits will be described next.

Supreme Court Proceedings

Surely, those brilliant luminary leading lights of American jurisprudence, the Justices of the United States Supreme Court, couldn’t possibly be cornswaggled — co-conspirators in the rogue First Circuit’s big lie. Right?

U.S. Supreme Court (indicating Scalia vacancy)
U.S. Supreme Court (indicating Scalia vacancy)

Petition for Writ of Certiorari (PetWritCert), with Required Appendix (ReqApx), Supreme Court case №16-343, was filed on Sep 12 2016.

Supreme Court Filings
Supreme Court Filings (booklet format)

At this point in the saga, it was no longer necessary/appropriate/desirable to feign nicety towards the First Circuit judges (as had been circumspectly done in the last filing to the Appeals Court). It was still imperative to “play nice” with the Supreme Court itself, of course. But “not too nice.” All available advice (such as https://m.mayerbrown.com/Files/Publication/34891e80-a15d-4b25-84a2-d3c8573d23da/Presentation/PublicationAttachment/5f64270f-6be0-4cec-8cc8-10e6bed6988b/ART_CIRCUITRIDER_JUN07.PDF , and https://www.citizen.org/documents/GettingYourFootintheDoor.pdf ) teaches that the very first substantive page (called “Question Presented”) is the most important single element of a “certworthy” Petition. That one nutshell page must make an immediate, hard-hitting impact (otherwise the Petition risks foundering from first-page ennui, filtered out by “cert pool” law clerks), designed to make the Petition an irresistibly compelling self-page-turning mystery novel. Hence (noting that more than a single Question Presented is universally regarded as “too much” for the Supreme Court to handle — “all the wood behind one arrowhead”), Tuvell’s case-in-chief had to be relegated/demoted to a PetWritCert Addendum (PetAdd) = ReqApx ℘92–123, to be revisited if/as/when the District Court’s decision/opinion was overturned. The result was:

Question Presented
Question Presented

The entirety of PetWritCert is no less candid/unsparing. Ticklers touched all the Supreme Court’s sweet spots (“erogenous zones”):

All arguments were unavailing. The Supreme Court falsely denied PetWritCert (which by this time had been augmented by Supplemental Brief1 and Brief2 — discussed further in the section on Judicial Council Proceedings, infra), on Nov 7 2016.

Supreme Court Rehearing

Petition for Rehearing of PetWritCert (PetWritReh) was filed on Nov 19 2016.

Given that the Supreme Court had now proven itself cravenly insusceptible to arguments based on “pedestrian, plebian, lower-order” concerns (such as professionalism, duty, law and order, and Constitutional guarantees), PetWritReh took a new tack, basing its arguments on a variety of “elevated, imperial, higher-order” concerns (such as: history, patriotism, art, literature, logic, and philosophy of law, particularly the fundamental doctrine of precedents (stare decisis)) — even including a unique Syllogism Table = PetWritRehApx ℘1–6 to ensure/demonstrate there was no gap in the reasoning. Oh yes, one more thing: the PetWritReh directly accused the Supreme Court itself of wrongdoing/corruption.

Surprise! — It didn’t work. The Supreme Court falsely denied PetWritReh on Jan 9 2017.

The fish rots from the head down.υ

υ・ Traditional proverb, of seemingly ancient/universal provenance, describing dysfunctional/corrupt organizations/institutions — in this case, the Federal Judiciary.

Judicial Council Proceedings

Tuvell’s interactions with the First Circuit Judicial Council were characterized by a sequence of four “Revelations” (a fifth being added later, infra):

[Revelation #1] Toward the end of Aug 2016, Tuvell first discovered the existence of laws and rules governing Judicial Misconduct. As soon as he could (it was the same day he sent PetWritCert to the printer for production in Supreme Court booklet format, SupCtR 33), he set about researching that topic, and drafting two formal Complaints of Judicial Misconduct — the first a Complaint Against the District Judge (№01-16-90036) = JCApx ExhB.a, and the second a set of five Complaint(s) Against the five Appellate Judges (№01-16-90037–01-16-90041) = JCApx ExhB.b — which were filed with the First Circuit Judicial Council on Sep 12 2016 (the same day PetWritCert was filed with the Supreme Court). Copies were also filed afterward (Sep 30) with the Supreme Court (SupCtR 15.8), as SuppBrief1 (and conversely, Tuvell always kept the Judicial Council informed of his filings to the Supreme Court).

[Revelation #2] Shortly thereafter, Tuvell conducted research into all eight of Judge Casper’s previous employment-related summary judgment decisions/opinions he could locate (JCApx ExhGb–c,Ib–j), and found that in every one of them, she properly (per rule) heard/considered their Plaintiff’s Statements of Facts (PSOFs) (no stance is taken here regarding the “correctness” of her opinions/decisions in those eight cases, just the propriety of listening to their Plaintiffs). This pattern was statistically significant (100%!), and prove that: (i) not only did Casper know/understand/observe proper Summary Judgment procedure generally; (ii) but also she specifically/biasedly discriminated solely against Tuvell (for unknown reasons (perhaps actively in favor of IBM‽)) by withholding from him the same courtesy/obligation. Tuvell timely filed his findings to the Judicial Council (JCApx ExhG–I, Oct 2–3), and with the Supreme Court (SuppBrief2, Oct 13). Thus both the Council and the Court were timely notified of Casper’s differential perfidy, and (presumably) took it into consideration before reaching/rendering their decisions/opinions.

[Revelation #3] After the Supreme Court falsely denied his PetWritCert (Nov 7), Tuvell had another epiphany, realizing that criminal statutes were applicable to his judges’ behavior. He outlined these theories in a series of communications to the Judicial Council (JCApx ExhM–BB, Nov 20 2016 – Jan 2 2017), culminating in his JudicialTwilightZone essay. Thus, the Judicial Council was well aware of the judges’ possible/probable criminal behavior, and (presumably) took it into consideration before reaching/rendering its decision/opinion.

[Revelation #4] Tuvell’s final proactive production for the Judicial Council’s benefit came in the form of his insight to create a new ultimately enhanced version of the PSOF-Exclusion Table he’d already created/contributed previously (1-page abridged version , 5-page unabridged version ). This ultimate/definitive parallel/juxtaposed version of the PSOF-Exclusion Table — fully 70(!) pages long — explicitly quoted/compared verbatim in entirety the controversial passages (Statements of Facts) from the three controlling documents in question: (i) District Court’s (illicit) Opinion ; (ii) nonmovant’s PSOF  (which the court must, by rule, credit above the DSOF); (iii) movant’s DSOF (which the court must, by rule, discredit beneath the PSOF). No proof of illicitness could ever be more stark/positive/convincing/rock-solid (and of course it could never be denied/thwarted/disproved/scotched, because these were formally/officially filed court documents). Tuvell filed this proof on Jan 9 2017, so (presumably) the Judicial Council took it into consideration before reaching/rendering its decision/opinion.

Ignoring, again, all this “infinitely” valuable input, the Judicial Council issued its false decision/opinion on Jan 27 2017, falsely dismissing the charges of Judicial Misconduct. It was delivered by Judge David Barronφ (http://www.ca1.uscourts.gov/david-j-barron; https://en.wikipedia.org/wiki/David_Jeremiah_Barron). This was, of course, another exercise in complete/total/utter “big lying,” as Tuvell proved in his comprehensively annotated analysis of the decision/opinion (filed with the Judicial Council Review, infra).

φ・ ⁠The fact that Barron (acting in the role of Chief Judge designee for this action, the other five First Circuit appellate judges having been disqualified by being complained-of in the Complaints under consideration (JCDR 25(b)) issued the decision/opinion over his sole signature, indicates that the ruling was his alone (JCDR Å III), without soliciting any input from a “special committee” of the Council (JCDR Å IV). I.e., this is yet another kind of “summary” resolution, trying to trick/scare Tuvell into believing he’s wrong. But it doesn’t work (see the annotations). Furthermore, since Casper and the Appellate judges were forwarded copies of the complaints (JCDR 8(b)), this also shows they didn’t volunteer information/confessions either — as they should have, sua sponte voiding the judgment (FRCP 60(b); http://www.bu.edu/law/journals-archive/pilj/vol15no1/documents/15-1brownsteinnote.pdf ) if they had any integrity at all — otherwise, the result should/would have been different.

Judge David Barron
Judge David J. Barron

Anyone who works in the government realizes that your work product is likely to become public and scrutinized.χ Never put your name on anything you cannot defend. … Is this person capable of deciding a case fairly?

— Judge David Barron, Boston College Law School Magazine (Apr 2016)

χ・ ⁠Cf. “Brandeis sunlight.” Barron knows this phenomenon well, having been (in)famously “outed as the author of the controversial “(‘secret’) U.S. Drone memo

Judicial Council Review

Per JCDR Å V, Tuvell filed a Petition for Review by the Judicial Council, on Mar 6 2017.

Additionally, on the same day, Tuvell filed a new third Complaint of Judicial Misconduct (№01-17-90005), this one against Judge Barron (who had not heretofore been involved in the proceedings).

And not only that, but also on the same day, Tuvell filed an extraordinaryψ Emergency Objection/Motion/Proposal, demanding that all further consideration of his Complaints be removed entirely from the purview of the First Circuit (minimally to a separate Circuit, but preferably directly to the Judicial Conference itself), for good and sufficient reasons stated (bias/incompetence/misconduct/etc.).

ψ・ ⁠Actually, it’s not entirely clear exactly how “extraordinary” this step really was (though it was plainly “irregular”). For, the rules by which the Judicial Council/Conference operates (JCDR) are not very explicit as to this kind of irregular “motion practice” (namely, Rule 19(e) says there is “no right” to further review, though Rule 21(b) leaves further review to the “sole discretion” of the Judicial Conference, albeit at its own “initiative”); though Rule 2(b) says that all the rules can be changed whenever “[exigent] exceptional circumstances render application of that Rule in a particular proceeding manifestly unjust or contrary to the purposes of the Act or these Rules.” And, detailed records/documentation of other judicial misconduct proceedings (to use for comparison/clarification) are essentially impossible to obtain (because only output rulings/decisions from the Judicial Council/Conference are generally published, not the input Complaints — thereby illicitly shrouding their proceedings from public scrutiny (“Brandeis sunlight,” cf. ƒχ supra)). exceptional circumstances render application of that Rule in a particular proceeding manifestly unjust or contrary to the purposes of the Act or these RulesSo Tuvell, in attempting to conjecture “what should be reasonable” in his circumstance, was reduced to “sort-of just winging it” at this point.

[Revelation #5] On May 3 2017, Tuvell further submitted/filed this very website itself (http://JudicialMisconduct.US) into the record for the Judicial Council, who (presumably) took it into consideration before reaching/rendering its further decisions/opinions.

On Dec 5 2017 (fully 9 months (!) after it had been filed), Plaintiff’s third Complaint of Judicial Misconduct (№01-17-90005, against Judge Barron) was falsely rejected (by Chief Judge Howard), to no great surprise. As always, it was a complete lie, totally stonewalling (silently not-addressing) any of the issues Plaintiff raised, supra. It even went so far as to (falsely, abusively) warn/threaten Plaintiff not to pursue his case any further, upon pain of imposing a Show Cause Order (JCDR 10(a) ).

And then, just a few days later (Dec 11 2017), Plaintiff’s Petition for Review by the Judicial Council was falsely rejected. Yet again, this was a compete lying stonewall, etc. And this time, five new/additional District Judges (falsely) joined the cover-up:

At this point then, it was clear there existed no further provision/possibility for continued action within the First Circuit Judicial Council. So proceedings in the Judicial Council venue were now at an end.

Judicial Conference Proceedings

On Mar 6 2017, as already mentioned supra, Tuvell also (in addition to his Petition for Review by the Judicial Council, supra) filed his irregular/extraordinary Emergency Objection/Motion/Proposal (together with adequate supporting materials) directly with the Judicial Conference,ω moving that they intervene in this case (wresting control away from the First Circuit), for good and sufficient reasons.

ω・ ⁠Strictly speaking, such dealings are conducted with the so-called “Judicial Conference Committee on Judicial Conduct and Disability” (not just “Judicial Conference”), though for simplicity we continue to use this not-uncommon abuse of language (it causes no ambiguity/misunderstanding). Under “regular” circumstances (JCDR Å VI), a Judicial Council Complaint of Judicial Misconduct is not appealable by petition to the Judicial Conference, unless/until the Judicial Council has terminated its proceedings, rejecting the Complaint with a non-unanimous vote of the Council (JCDR 19(e)). But the present circumstances were not “regular.” (See also the preceding paragraph-footnote supra regarding the lack of clarity about exact rules of procedure at the Judicial Council/Conference in irregular circumstances.)

[Revelation #5′] On May 3 2017, Tuvell further submitted/filed this very website itself (http://JudicialMisconduct.US) into the record for the Judicial Conference, who (presumably) took it into consideration before reaching/rendering its decisions/opinions.

Tuvell never heard back (!) from the Judicial Conference concerning his irregular petition(/“appeal”) (apart from the Post Office’s notices of delivery, supra). (Even though Rule 2(b) authorizes the Judicial Conference to do anything it wants, consistent with justice.)

Later, then, after the conclusion of the First Circuit Judicial Council proceedings (rejections of Dec 5,11 2017, see supra), Tuvell pursued the further/final step available under the auspices of the Judicial Branch of Government: on Jan 22 2018 he filed his regular/official/formal (as opposed to “irregular,” cf. supra) Petition to the Judicial Conference.


DOJ/FBI/PIN Proceedings

As mentioned supra, concomitantly with his work on Judicial Misconduct proceedings with the Judicial Council (a purely Judicial Branch in-house affair, without contemplation of civil or criminal penalties), Tuvell became aware of the potential for statutory criminal charges against the judges. Thereupon, he tried several (~half-dozen) times to contact (by email, U.S. mail, telephone) authorities in the DOJ, FBI and PIN. All attempts were frustrated by stonewalling/incompetence in those departments. They either (i) didn’t respond, or (ii) they responded with “bum’s rush” blow-offs, or (iii) they (literally) pretended to “not even hear/understand” what Tuvell was saying (on the phone, after consulting sotto voce with superiors in the background).

At one point however, after Tuvell complained (Dec 12 2016) to the DOJ Office of the Inspector General, he was finally heeded (Feb 15 2017), at least to the extent of prodding other officials. Whereupon Tuvell did receive a (more-or-less “official”?) “case number” (№DA300578449) from the DOJ Criminal Division. This was surely a mark of nontrivial/significant progress. But, it was not yet actionable — until, apparently/seemingly(?), all Judicial Branch pursuits (now reduced to just the Judicial Council/Conference) had been exhausted first — even though clear criminal acts had already indeed/obviously been committed, and there was no provision for “exhaustion of benefits/remedies” built-in to (any) criminal statutes. In other words: the cover-up continues still, even into the (presumptively incorruptible) DOJ/FBI/PIN.αα

αα・ ⁠The cover-up had, incidentally, already extended, from the Judicial Branch, into the Executive and Legislative Branches — local/state/federal representatives of various flavors, including Tuvell’s U.S. House/Senate representatives, even the (offices of the) President and presidential candidates. Not to mention various and sundry non-governmental self-proclaimed/advertised “(pseudo)-expert/advocates” — lawyers, law professors, investigative journalists, justice bloggers, “talking heads with big names," …. But, to bother beating these already-dead horses even deader would at this point be too tedious/superfluous ….

[Revelation #5″] On May 3 2017, Tuvell further submitted/filed this very website itself (http://JudicialMisconduct.US) into the record for the DOJ/FBI/PIN, who (presumably) took it into consideration before reaching/rendering its decisions/opinions.


The Court of Public Opinion



This case is still active, at the time of this writing (at the level of DOJ/FBI/PIN, as opposed to the Federal Courts).

So, while the final chapter cannot yet be written, most of the story is already/permanently extraordinarily clear. Namely: The Federal First Circuit Judges (six District Judges, plus all six Appellate Judges, all named supra) are fucking lying corrupt traitorous criminals, as documented supra. And further, by reasonable deduction, the (Federal) Judicial System “as-a-whole in-general” (though not necessarily “every-single-individual”) — comprising Supreme Court, Judicial Council, Judicial Conference, judges, attorneys, judges, professors, lawyers, clerks, etc. — is a fucking lying corrupt traitorous criminal enterprise (in the sense documented supra).



The Big Lie (Der Große Lüge)ββ

ββ・ ⁠“The Big Lie” idiom was used already alluded to subliminally in PetWritCert (℘24), but without the interpretive apparatus accorded to it here.

… in der Größe der Lüge immer ein gewisser Faktor des Geglaubtwerdens liegt, da die breite Masse eines Volkes im tiefsten Grunde ihres Herzens leichter verdorben als bewußt und absichtlich schlecht sein wird, mithin bei der primitiven Einfalt ihres Gemütes einer großen Lüge leichter zum Opfer fällt als einer kleinen …

Adolph Hitler, Mein Kampf ʋI Ͼ10 (1925)γγ

γγ・ ⁠Due to certain controversies surrounding translations of Mein Kampf, we present four translations of this passage, infra. {†・ Incidentally, Hitler wrote this passage in the context of (what he considered) “Jewish ‘big lies’” — thereby himself unwittingly committing the original/prototypical “Big Lie.”}

… in the big lie there is always a certain force of credibility; because the broad masses of a nation are always more easily corrupted in the deeper strata of their emotional nature than consciously or voluntarily; and thus in the primitive simplicity of their minds they more readily fall victims to the big lie than the small lie …

tr. Murphy (1939)

… in the size of the lie there is always contained a certain factor of credibility, since the great masses of a people may be more corrupt in the bottom of their hearts than they will be consciously and intentionally bad, therefore with the primitive simplicity of their minds they will more easily fall victims to a great lie than to a small one …

Reynal & Hitchcock ed. (1939)

… the magnitude of a lie always contains a certain factor of credibility, since the great masses of the people in the very bottom of their hearts tend to be corrupted rather than consciously and purposely evil, and that, therefore, in view of the primitive simplicity of their minds, they more easily fall victim to a big lie than to a little one …

tr. Manheim (1943)

… within a big lie, a certain fraction of it is always accepted and believed. At the bottom of their hearts, the great masses of a people are more likely to be misled by their emotions than to be consciously and deliberately bad. In the primitive simplicity of their minds, they will more easily fall victim to a large lie than a small lie …

tr. Ford (2009)

One should not as a rule reveal one’s secrets, since one does not know if and when one may need them again. The essential English leadership secret does not depend on particular intelligence. Rather, it depends on a remarkably stupid thick-headedness. The English follow the principle that when one lies, one should lie big, and stick to it. They keep up their lies, even at the risk of looking ridiculous.

Joseph Goebbels, Churchill’s Lie Factory (1941)δδ

δδ・ ⁠This passage of Goebbels, considered to be inspired by (or a variation/reinterpretation of) Hitler’s Mein Kampf “Big Lie” theory (just presented, supra), is more commonly seen (mis/re)-attributed in the following elaborated form (colloquially called “Goebbels’ Big Lie Technique”): “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.” Nowadays, The Big Lie is encapsulated by the more modernized “Gaslightingmeme. (See also, in this connection, the JudicialTwilightZone essay, supra, and https://en.wikipedia.org/wiki/The_Twilight_Zone.)